Departing Kiefel an Exemplary Leader of the High Court

The Honourable Chief Justice Susan Kiefel AC retires from the High Court in November. She has been an outstanding Chief Justice. Before appointment to judicial office she practised as a barrister from chambers in Queensland. Her Honour’s announced successor is the outstanding Honourable Justice Stephen Gageler AC.  The following opinion piece by the Honourable George Brandis KC – former Commonwealth Attorney General and Australian High Commissioner to the United Kingdom – was published in the Sydney Morning Herald on 28 August 2023.

Last week, Anthony Albanese and Attorney-General Mark Dreyfus announced one of the most important decisions any government ever makes: the appointment of Australia’s next chief justice. Upon the retirement of the incumbent Susan Kiefel in October, Stephen Gageler will become the 14th leader of the High Court. NSW judge Robert Beech-Jones will fill the vacancy created by Kiefel’s departure.

The announcement attracted little notice. The national broadcaster regarded the story as of so little importance that it ranked fourth on its radio news bulletin, which led with the retirement of Ita Buttrose. (I guess if you live in ABC-land, the retirement of your chair is a lot more important than the appointment of the head of one of the three branches of government.)

Not that Dreyfus would have minded the modesty of the coverage. Attorneys-general are judged by the quality of their senior judicial appointments. Absence of controversy is a good practical measure of success. The four most important appointments so far made under Dreyfus — Gageler, Debbie Mortimer as Chief Justice of the Federal Court, and Jayne Jagot and Beech-Jones to the High Court —have been well received. All satisfied the double test: that the nominee be respected professionally and untainted by controversy.

After Kiefel, Gageler is the longest-serving member of the court. Before that, he was an impeccable solicitor-general. Because he is the oldest justice, we should not expect any further appointments before he reaches retirement age in 2028. That is longer than usual for there to be no changes to the composition of the court, which gives Gageler the opportunity to put his stamp on its jurisprudence.

The appointment of Beech-Jones, following that of Jagot last year, means the court is now heavily Sydney-centric; four of its seven members come from the NSW bar or bench. There are two Victorians. For the first time since 1970, there is no Queenslander. Justice James Edelman, who now lives in Brisbane, is from Perth. Beech-Jones was originally Tasmanian. South Australia has never had a High Court judge.

Gageler’s accession will bring the departure of one of the most remarkable chief justices Australia has had. I have known Kiefel for more than 35 years; as a barrister, I worked with her often and had a first-hand view of her outstanding qualities as a lawyer. Notwithstanding her academic success, she also had common sense in abundance.

There is no place more cloistered than the top floor of the High Court building, where the judges have their chambers. To that rarefied environment, Kiefel brought a refreshing pragmatism and worldly wisdom.

That wisdom no doubt comes from her background — a great Australian story, and certainly the most unorthodox of any High Court judge. Kiefel left school at 14. She became a barristers’ secretary, completing secondary school at night, then qualified for the bar. It cannot have been easy for female barristers in Brisbane in the 1970s – there were very few — but her talent was soon recognised. Eventually, she won her way to Cambridge, where she earned a master of laws and won the prize for comparative law. After returning home, she became Queensland’s first female QC and Supreme Court judge. She has obviously been a great role model for female lawyers — but as an achiever, not an activist.

Kiefel’s leadership of the court is a study in calm authority. (She is as tough as can be, but I have never heard her raise her voice.) She balanced scholarly assurance with practical appreciation of the need for the court to give clear guidance. She disapproved of the practice of each judge writing separate opinions (“vanity judgments”), often with confusingly different reasoning to the same conclusion. She encouraged joint judgments. Of course, among seven highly intelligent people with strong opinions, that was not always possible. For instance, the court split 4-3 in the Love decision on Indigenous citizenship; both Kiefel and Gageler were in the minority. Nevertheless, under her leadership, the court often spoke with one voice.

US jurist Alexander Bickel once described the US Supreme Court as “nine scorpions in a bottle”. There have been times when the High Court has been a little like that. But not on Kiefel’s watch. She may have been a role model for women in the law, but as an exemplar of judicial leadership, Susan Kiefel is a model for Stephen Gageler as well.